In re Chelsea Solar LLC

• Decision Date: 16 April 2021
• Docket Number: No. 19-226,19-226
• Citation: 254 A.3d 156
• Parties: IN RE Petition of CHELSEA SOLAR LLC, Pursuant to 30 V.S.A. § 248, for a Certificate of Public Good Authorizing the Installation and Operation of the "Willow Road Project," a 2.0 MW Solar Electric Generation Facility on Willow Road in Bennington, Vermont
• Court: Vermont Supreme Court

254 A.3d 156

IN RE Petition of CHELSEA SOLAR LLC, Pursuant to 30 V.S.A. § 248, for a Certificate of Public Good Authorizing the Installation and Operation of the "Willow Road Project," a 2.0 MW Solar Electric Generation Facility on Willow Road in Bennington, Vermont

No. 19-226

Supreme Court of Vermont.

January Term, 2020

April 16, 2021

Reargument Denied May 13, 2021

Thomas Melone of Allco Renewable Energy Limited, New York, New York, for Appellant.

Sarah L. J. Aceves, Special Counsel, Montpelier, for Appellee Vermont Department of Public Service.

L. Brooke Dingledine of Valsangiacomo, Detora & McQuesten, P.C., Barre, for Appellees/Cross-Appellants Apple Hill Homeowners Association and Mt. Anthony Country Club.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

REIBER, C.J.

¶ 1. Developer Chelsea Solar LLC seeks a certificate of public good (CPG) to construct and operate a 2.0-megawatt (MW) solar electric generation facility off of Willow Road in Bennington, Vermont (the Willow Road Facility). The Public Utility Commission (PUC) denied developer's petition, concluding that the Willow Road Facility and an adjoining facility proposed by developer, Apple Hill Solar, (the Apple Hill Facility) were a single 4.0-MW "plant" under the applicable definition of this term. In its decision, the PUC also considered and rejected arguments by intervenors Apple Hill Homeowners Association (AHHA) and Mt. Anthony Country Club (MACC) regarding various CPG factors. It concluded, among other things, that the project would not unduly interfere with the orderly development of the region under 30 V.S.A. § 248(b)(1) or have an undue adverse effect on aesthetics under § 248(b)(5).

¶ 2. Developer appeals, challenging the PUC's single-plant determination and its orders granting permissive intervention to AHHA and MACC. Intervenors cross-appeal and argue that the PUC erred in concluding that the CPG factors cited above were satisfied. We affirm the PUC's decision to deny the CPG based on its conclusion that the Willow Road and Apple Hill Facilities are a single plant. Given our conclusion, we find it unnecessary to reach the PUC's evaluation of the CPG factors. We find no error in the PUC's permissive-intervention decision.

I. Overview

¶ 3. Developer seeks to take advantage of Vermont's Sustainably Priced Energy Enterprise Development (SPEED) Program, which "promote[s] development of renewable energy in Vermont." In re Programmatic Changes to Standard-Offer Program, 2014 VT 29, ¶ 2, 196 Vt. 175, 95 A.3d 999 (citing 30 V.S.A. §§ 8001, 8005, 8005a). The program "requir[es] electric utilities to purchase a certain amount of power from renewable energy sources" and "creat[es] a standard-offer program" that allows for "long-term power-purchase contracts with electrical providers in Vermont." Id. (discussing SPEED program). The PUC "guarantees a set price for [a standard-offer] plant's energy for the duration of the contract regardless of whether the market price changes." Id. ; see also 30 V.S.A. § 8005a(f). The program is now called the standard-offer program. See 2015, No. 56.

¶ 4. To be eligible for this program, a project's proposed "plant capacity" cannot exceed 2.2 MWs. 30 V.S.A. § 8005a(b). This serves the Legislature's goal of "[p]roviding support and incentives to locate renewable energy plants of small and moderate size in a manner that is distributed across the State's electric grid." Id. § 8001(a)(7).

¶ 5. As applicable here, the term "plant" means:

an independent technical facility that generates electricity from renewable energy. A group of newly constructed facilities, such as wind turbines, shall be considered one plant if the group is part of the same project and uses common equipment and infrastructure such as roads, control facilities, and connections to the electric grid.

Id. § 8002(14) (2012).

¶ 6. The Legislature subsequently amended this language. It removed the words "newly constructed" from the second sentence above and added the following sentence at the end: "Common ownership, contiguity in time of construction, and proximity of facilities to each other shall be relevant to determining whether a group of facilities is part of the same project." Id. § 8002(18); see also 2013, No. 99 (Adj. Sess.), § 3 (adding this language).

¶ 7. The PUC found that developer filed a complete application before the 2014 amendment and that developer had asserted, and been found to have, vested rights in the laws in effect at the time of its initial application.

II. History of Willow Road and Related Projects

¶ 8. With this overview in mind, we turn to the history of the projects involved here. In 2013, developer submitted several 2.0-MW projects in response to a request for proposals, including "Apple Hill Solar" and "Bennington Solar."¹ Bennington Solar was later renamed "Chelsea Solar" and it evolved into the Willow Road project at issue here.

¶ 9. In 2013, the PUC² ruled that Apple Hill and Bennington Solar, as then designed, were a single 4.0-MW plant because both projects were "located on the same parcel of land" and "ha[d] similar interconnection points." Programmatic Changes, 2014 VT 29, ¶ 7, 196 Vt. 175, 95 A.3d 999. The PUC "accepted the Bennington project and disqualified the Apple Hill project, which had a higher price." Id. It authorized developer to enter into a standard-offer contract for Bennington Solar. Id.

¶ 10. Developer moved for reconsideration, arguing the two facilities were independent because "they would connect with the electric grid through separate three-phase lines, be separated by a fence, have separate access roads, use separate inverters, transformers and other equipment, and have different financing parties." Id. ¶ 8. The PUC denied the motion. It found that "[w]hile the projects m[ight] be operationally independent, they [were] still being advanced by the same developer, located on the same parcel of land, and adjoining each other," and based on its "review of the site plans," it was "reasonable to infer that they [were] a single plant." Id. Developer's interpretation, the PUC reasoned, "would permit any size facility to be constructed so long as it could be partitioned into ‘technically independent’ 2.2 MW pieces by including redundant equipment and separating each piece by a mere fence." Id. (quotation marks omitted) (brackets omitted). It found that "this type of clustered development would frustrate the legislative goal of distributing small-to-moderate facilities across the state's electric grid." Id.

¶ 11. We reversed this decision on appeal. We found that the statute, as then drafted, did not mention "physical proximity or common ownership as relevant factors in determining whether facilities are separate plants." Id. ¶ 11. Instead, it contemplated that "electrical generation facilities are not independent if they share technical features such as equipment and infrastructure." Id. ¶ 10. We concluded that the projects did not share infrastructure and equipment because they would "not share common roads, control facilities, or connections to the electric grid"; each would "have a separate interconnection agreement with GMP [(Green Mountain Power)] and separate interconnection facilities designed and owned by GMP, which would limit the capacity of each to 2.0 MW"; and each would be required to "obtain a separate certificate of public good." Id. ¶ 12. We found our conclusion "consistent with the Legislature's stated goals" of promoting renewable energy at affordable prices and encouraging small- and moderate-size plants across the state's electric grid. Id. ¶ 14. We thus concluded that developer was entitled to a standard-offer contract for each of its proposals.

¶ 12. Developer executed two standard-offer contracts for its projects and sought CPGs for each. It changed the name of Bennington Solar to Chelsea Solar. In February 2016, the PUC denied a CPG for Chelsea Solar, concluding that the project failed to satisfy several CPG factors. Developer eventually filed an amended petition with the PUC seeking to install and operate a 2.0-MW solar facility in approximately the same location as the Chelsea Solar project. This is the Willow Road Facility at issue in this appeal.³

III. Willow Road Facility and PUC Decision on Appeal

¶ 13. In a June 2019 decision, the PUC denied developer's request for a CPG to install and operate a 2.0-MW plant at the Willow Road Facility. It found that developer's proposals had significantly changed since 2013 and that Willow Road and Apple Hill were now one "plant" given their use of common electrical infrastructure agreed to by a common developer as part of a common development scheme.

¶ 14. While the term "project" was not defined in the 2014 statute, the PUC found that developer's behavior here satisfied a dictionary definition of this term as it involved "a plan or proposal; a scheme" or "an undertaking requiring a concerted effort." The PUC explained that both facilities were located on a 27.3-acre tract in Bennington and they "share[d] the same landlord." That landlord, like Chelsea Solar LLC and Apple Hill LLC, was a subsidiary of developer. The PUC found that developer had decided that the development of 4.0 MW of solar electric generation on Apple Hill would best be accomplished with two individual proposed facilities. Developer filed two petitions for separate standard-offer contracts and then filed separate CPG petitions for the facilities.

¶ 15. By filing separate petitions, developer was able to obtain two standard-offer contracts that guaranteed payment for the 4.0-MW facility, even though the Legislature had explicitly limited the size of the standard-offer projects to 2.2 MW. Developer later financed a joint system-impact study for the two facilities and adopted GMP's conclusion that the combined 4.0-MW solar field should connect to the existing electric grid via a one-mile-long GMP line extension. The PUC found this was a single 4.0-MW plant, resulting from a single...